Amos Guiora: The enabler is a person in a position of authority who has knowledge and makes the decision to protect the institution and ergo, institutional complicity, rather than protect the individual.

Diane Maggipinto: This is 3 in 5. I’m Diane Maggipinto, the host of this podcast, three questions in five minutes from the S.J. Quinney College of Law at the University of Utah.

My guest today,

Amos Guiora: Amos Guiora, professor of law, S. J. Quinney College of Law. University of Utah..

Diane Maggipinto: I’m going to start with a quote, that I think sums up somewhat what your research is about. “The decision to not act on behalf of the person in peril equates to acting on behalf of the perpetrator. From the perspective of the endangered individual, the enabler has,in essence, supported the perpetrator”. The title of your research is failing to protect the vulnerable, the dangerous of institutional complicity and enablers.

What’s the main takeaway, the points you’re arguing and what might be new to the listener?

Amos Guiora: That for too long, we have only focused on the relationship between the victim and the perpetrator. And I argue that the focus must be on something very different, an institutional complicity, the enabling culture, and the fact that the enabler is the one who enables the perpetrator to act with immunity and impunity, thereby enhancing the vulnerability of the victim.

Diane Maggipinto: And in fact, your research is from the perspective of the victim, the person who is in peril. Can you give it an example?

There are innumberable examples, but I think one that really highlights it.

Lindsey Lemke was the captain of Michigan State University’s women’s gymnastics team. And she had been assaulted by Larry Nassar, the doctor with Michigan State and USA Gymnastics. She at some point decides that enough is enough and goes to her coach, Kathie Klages. And tells Coach Klages that she, Lemke, is going to go to the police to report Nassar, but she wants to give the coach a heads up.

Klages, who was an employee of Michigan State University, tells Lemke three things. One, if you complain, I’m going to have to talk to your parents, which is absolutely incorrect because Lemke is either 20 years old or 21 years old. And it’s just irrelevant. The second thing she tells Lemke is Lindsay, I want you to think about how this will impact Larry and his family.

Which is about the last thing in the world Lemke needs to worry about. And the third thing she told Lemke, which is the most harmful, the most dangerous, frankly, the most criminal: Lindsay, I remind you that scholarships are given and scholarships can be taken. And that threat was made in the name of institutional complicity, protecting Michigan state university, clearly protecting Nasser and enhancing the vulnerability of the survivor, Lindsey Lemke.

In this particular example, and generally in your research, you speak of the crime of omission and has been subject to pushback. What does that mean? Why does it matter?

Amos Guiora: Because I think that the time has come to criminalize the bystander and the enabler. And in that spirit last month, Governor Spencer Cox here in Utah signed the bill that was passed by the legislature, which is combination of a reporting bill and a bystander bill, that if someone sees or knows of a child in distress or a vulnerable adult, there’s the obligation to report. Failure to do so is a class B misdemeanor.

And if you’re a teacher and/or in social services and/or in law enforcement, you may lose your job. After having worked on criminalizing the bystander for the past five or six years, I owe a huge thank you to Representative Brian King, who carried the ball in the legislature for the past five years. And the next step really is this criminalizing the enabler.

It is a crime of omission and you are correct that there is pushback to this. And I understand the challenge. I accept the challenge, but I view this through the lens of the survivor to ease their terrible trauma, because it is the duty I owe the survivors who have agreed to meet with me, to be interviewed by me, to share their stories with me.

Diane Maggipinto: Explain the difference, please, between bystander and enabler.

Amos Guiora: The bystander is the person who’s physically present and sees the peril of the other, meaning that they have knowledge and capability to act distinct from the enabler, who was the person who knows or should have known of the peril of the other.

The example I gave of Kathie Klages, Klages wasn’t there when Nasser violated Lemke, but Lemke comes to her, shares with her, and it’s at that moment that Klages becomes the enabler when she tries to convince Lemke not to complain.

Diane Maggipinto: I’m glad that you mentioned the Utah legislation and congratulations on that. You also talk of expanding statutes as one potential solution.

Why, what would that look like?

Amos Guiora: I do believe in the criminal code. I think criminalizing is not sufficient. There’s also a need for a significant educational undertaking to educate about the consequences of the bystander and the consequences of the enabler. That the public understand that there are consequences and ramifications to the omission of the bystander and the enabler. People say to me, well, you know, So somebody didn’t do something and I say, well, actually from the survivor’s perspective, the enabler is in many ways more significant or certainly not less significant than the perpetrator.

And that’s one of the really interesting questions is trying to assess, measure the impact consequences, ramifications of the decision by the enabler not to act. We need to convince and explain that the action of the enabler, action by not helping, absolutely has consequences from the perspective of the survivor. And that needs to be the most important point that we need to make and to convince.

Diane Maggipinto: That’s Three in Five, from the University of Utah S.J. Quinney College of Law.