DV Journal

The rape of a woman on a Philadelphia train continues to raise questions, one of them being, should witnesses to a crime be required to help a victim? These are called “Bad Samaritan” laws, and Pennsylvania is not one of the 29 states with such rules on the books.

“Bad Samaritan laws express society’s revulsion about and retribution against bystanderism, and encourage upstanderism,” says Zachary D. Kaufman, J.D., Ph.D., Associate Professor of Law and Political Science, and co-director of the Criminal Justice Institute at University of Houston Law Center. “Bad Samaritan laws are different from Good Samaritan laws, as Bad Samaritan laws punish people for not providing help whereas Good Samaritan laws immunize people from liability when offering aid.”

For example, if someone is choking, a Good Samaritan law would immunize you from accidentally breaking the person’s rib if you administered the Heimlich maneuver.

“A Bad Samaritan law would punish you if you didn’t even try to help the person,” says Kaufman.

In the hours immediately following the October 13 rape Philadelphia police officers were quoted as saying people on the train did nothing to intervene.

“It’s disturbing that there were definitely people on the El and no one did anything to intervene or help this woman,” Upper Darby Police Department Superintendent Timothy Bernhardt said in the hours immediately following the attack.

The comments caught fire and got attention from news outlets including USA Today, The New York Times, and CNN. However, Delaware County District Attorney Jack Stollsteimer has since dismissed claims that witnesses did nothing, adding people on the moving train may not have even known exactly what was happening.

“This is the El, guys. We’ve all ridden it,” said Stollsteinmer in a story published by NBCPhiladelphia.com. “People get off and on at every single stop. That doesn’t mean when they get on and they see people interacting that they know a rape is occurring.”

Two people may have recorded video of the rape, one of whom “probably” alerted train operators about the attack, added Stollsteimer.

Law enforcement identified the man arrested as 35-year-old Fiston Ngoy. According to investigators, Ngoy and the victim both boarded the train at the Frankford Transportation Center in northwest Philadelphia. It was not until around 27 stops later at the 69th Street terminal in west Philadelphia that police said they were able to stop the assault.

“In addition to punishing bystanderism and encouraging upstanderism, prosecutors could offer immunity from an applicable Bad Samaritan law in exchange for a criminal witness’s testimony,” says Kaufman, who is also Visiting Associate Professor of Law at Washington University in St. Louis School of Law.

“Violations of Bad Samaritan laws in the United States are rarely prosecuted, so they are not often used to punish bystanderism,” adds Kaufman. “Such offenses could be tried more frequently, which would increase this usage of the statutes.”

David French, senior editor of the Dispatch, says people helping people is what makes us a functioning society.

“We’re saying things are so broken down that we’re going to have to pass a law for basic, human decency,” French told Delaware Valley Journal. “That’s sort of a symbol of how much these norms have been abandoned, and that’s troubling.”

French has “zero problems” with the notion that says it is a basic requirement of human decency to intervene when you can to save someone in distress, “but repairing those norms through laws that are almost impossible to enforce seems to me to be an act of futility.”

The very existence of Bad Samaritan laws is not widely known, so Kaufman says they are not effective at prodding upstanderism.

“Authorities and concerned citizens, however, could raise public awareness of the statutes,” says Kaufman. “Prosecutors occasionally offer criminal witnesses immunity from Bad Samaritan laws in exchange for testimony, but that usage’s frequency is unclear.”

As such, Kaufman says it is “difficult to determine how effective Bad Samaritan laws are,” but it is possible that they could be more effective if the statutes were more widely known and violations were more frequently prosecuted or immunized in exchange for witness testimony.”

Even then, Kaufman said Bad Samaritan laws are arguably unconstitutional in certain contexts.

“First, some critics contend that duty-to-report laws violate the U.S. Constitution’s First Amendment’s right against compelled speech,” says Kaufman. “However, where it has a compelling interest, the government lawfully requires statements of fact, such as with tax returns and draft registrations.”

In addition, the government can lawfully require reporting information about crimes through issuing subpoenas to testify.

“So, the First Amendment’s protection against compelled speech is not absolute,” says Kaufman. “In any case, Bad Samaritan laws could be drafted so as not to compel speech; they could include the option of providing direct assistance.”

Second, complying with a duty-to-report law could infringe a person’s right against self-incrimination, protected under the U.S. Constitution’s Fifth Amendment. However, duty-to-report laws could be drafted or amended in four ways to avoid self-incrimination.

“First, these statutes could require actions, at least one of which would not necessarily cause self-incrimination (such as summoning non-police assistance or providing direct assistance to a victim),” says Kaufman. “Second, Bad Samaritan laws could state that self-incriminating information is not required to be disclosed when summoning or providing assistance. Third, such statutes could immunize individuals from being charged with crimes that only come to the attention of law enforcement from complying with the statutes. Fourth, Bad Samaritan laws could simply exempt individuals who would self-incriminate by complying.”

Delaware County District Attorney Jack Stollsteimer says he has no plans to prosecute the people who watched and took videos while a woman was raped on the Market-Frankfort El for eight minutes.

Stollsteimer released a statement Wednesday saying he intended to “prosecute the perpetrator to the full extent of the law,” but not the onlookers.

“While I share the public’s outrage that such a heinous crime could occur on a public SEPTA train, I want to reiterate that Pennsylvania law does not allow for the prosecution of a passenger who may have witnessed a crime. Accordingly, any passenger who believes he or she may have observed the October 13th event on the SEPTA train should not fear prosecution. You are encouraged to come forward to share information with law enforcement,” Stollsteimer said.

Fiston M. Ngoy, 35, a reportedly homeless Philadelphia resident, was arrested when the train arrived at the 69th Street Transportation Center after a SEPTA worker intervened.

Ngoy, who was unable to make bail, is being held at the George W. Hill Correction Center, according to court records. He was charged with rape and sexual assault, among other crimes. The incident was national news. Published accounts say Ngoy overstayed his visa and, despite an arrest for a misdemeanor sexual offense, was allowed by a federal immigration judge to remain in the U.S.

Meanwhile, at least one person who was assaulted on the very same SEPTA train has some strong criticism for Stollsteimer.

“As someone who was recently the victim of an assault on the El, I am deeply disappointed in the comments by DA Jack Stollsteimer assuring witnesses to the rape that they would not be prosecuted,” said Christine Flowers, an immigration attorney, and occasional Delaware Valley Journal columnist.  “Having interviewed Stollsteimer on the radio and written about him favorably on social media, I truly believe that he has the best interests of victims at heart. His engagement with victims and the communities they inhabit is admirable and in stark contrast with Philadelphia DA Larry Krasner, who has consistently ignored the pain of those preyed upon by criminals in the city.

“I am also aware that it is unlikely the law would support a prosecution of ‘bystanders,” Flowers said. “However, I find it tone-deaf and extremely disrespectful to the rape victim to try and calm the fears of callous, heartless men and women who stood by and allowed a fellow human being to be violated. Their conduct is even more repellent if you consider that instead of calling the police, they filmed the event for their private entertainment. Such despicable human beings do not deserve to be ‘comforted’ by the words of Delaware County’s chief law enforcement officer.”

Meanwhile, the District Attorney’s Office and the Criminal Investigation Division remind anyone in Delaware County who observes suspicious activity to call 911 immediately and provide the most specific and accurate details possible to assist law enforcement agencies investigating the call for service.

I’ve been riding the Market Frankford El for more than half a century. I was about four the first time I got on at 52nd Street with my grandmother, and we rode into the city to go to Wanamaker’s (after an initial round of shopping along the old 52nd Street commercial strip.) It was magical, gliding high above the city, watching the rooftops fly by, and seeing the ant-sized figures milling around below. I will never forget those first impressions of the El or the excitement of those rides in the 1960s with Mamie Fusco.

Later on, I started traveling alone, whether it be to work in Center City, weekend forays to the museums, shops, and restaurants, or simply to take long walks by the river drives (which in those days were called “East” and “West.”)  It never occurred to me to be afraid. The El was my friend, I who didn’t get my driver’s license until I was 40 and broke out into a cold sweat at the prospect of navigating city streets behind a wheel I controlled.

I can’t exactly put my finger on the moment that changed, when fear crept into my experience. I don’t think it was a specific incident because it evolved over a period of time. One day I paid my fare and stepped into the car at 69th Street headed east and felt an unusual, uncommon, and very unwelcome sense of discomfort.

And now, I can put actual events to those intangible feelings.  I’ve personally been assaulted on the El in the past few years, usually just with verbal epithets or threats from people who looked to be stoned, intoxicated, or mentally disturbed. My solution was to move to another car as quickly as possible.

More recently, I was punched in the back of the head by someone who looked to be about 13, wearing the sweatshirt of a local school. And the adult who was traveling with the child, who could have been a girl or a boy since most of the face was covered by a mask “for safety” (irony abounds) actually got up to defend him/her when I picked up my phone to call 911. Then, the kid knocked the phone out of my hand. And that adult?  He lunged at me, mouth filled with foam (I’d say he was a rabid animal but it was likely just spitting). I was able to get off at 40th Street before he hit me.

A few months before that, I was pushed and kicked by another youngster, this one clearly under the influence of drugs. Both incidents occurred in the middle of the day, with other people on the train cars.  A few tried to intervene, but most kept their faces buried in their phones. I suppose they thought that if you don’t look up, real life isn’t happening.

To be quite honest, I’ve been very lucky to have only had these random incidents of low-level violence happen to me, given the fact that I’ve been riding the rails for over a half-century.  Tragically, others haven’t been as lucky.

The day after I was punched by that young thug, a woman was raped on that same route. It started in the city and continued all the way through to the 69th Street terminus when police finally got on to stop the crime. The true crime, other than the horrific sexual violation, is that the security cameras showed people on the El who did nothing. Nothing. 

They didn’t call 911. They didn’t intervene. I thought perhaps they might not have known what was happening, but there’s no question that they did.  You couldn’t miss it.

Finally, a SEPTA employee called the police, who as I said were waiting when the train came to a stop.

This is an urban outrage that is no longer uncommon. The violence of the streets has entered into the train cars and bled into the lives of people who, like me, need to use public transportation to manage their day. I suppose we could all buy cars, or we could all wait hours for a bus to come and drop us off at a location miles away from our destinations, or we could Uber everywhere. Those among us swimming in money and affluence can hire a driver.

But for the rest of us, the price of a weekly Key card is a luxury we can barely afford but will purchase because we need mobility.  The fact that we take our lives into our hands for that mobility is an obscenity.

There have been shootouts at train stations filled with people in the middle of the day.  There have been deaths.  There have been long rides when you look in the faces of the strangers seated across from you and wonder which one of them is going to hurt you, slash you with a knife, expose himself to you (that’s happened to me as well), or in the best-case scenario, “only” steal your wallet. This is daily life on SEPTA, and this is the world created for us by DA Larry Krasner who allows criminals to slip underground, into the bowels of the trains and prey on the defenseless commuter.

We could vote Krasner out of office, which I hope we do. But that won’t completely solve the problem.

We can put more police into the cars, which I also hope we do. But that won’t solve the problem, either.

The lesson of this latest rape on the Market-Frankford Line is that we need to create a society where criminals, addicts, and sociopaths don’t have easy access to the rest of us. That’s a lot harder and takes common sense, people who aren’t afraid to be called racist or bigoted or uncaring, and I don’t think I’ll be riding the rails long enough to see it happen.