Moreover, in my opinion the court there cast its net too broadly in stating (at p. 172): Just watching is equally culpable with just torturing. All humans in distress just naturally look for help to other humans, a truth which has been accorded judicial notice. In 1921, in the U.S. case of Wagner v. Int. R.R., 133 N.E. 147; 19 A.L.R. 1 (N.Y.), the late Mr. Justice Cardozo, albeit in a different context, expressed that which might be a consistent human verity: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. ... The risk of rescue, if only it be not wanton is born of the occasion." Thus, it is so perverse and reprehensible just to watch the torture of a fellow human, no matter with what posture or expression, be it glee or just indifference, without making any gesture to rescue the victim, that the watchers are just as immorally criminal as the wielders of the electrodes, pliers, cigarette butts or instruments of suffocation. To be purposely inflicted with agonizing pain in the presence of other humans who will not come to one's help, is to be doubly tortured, for it creates utter despair. The "mere" watcher is just as culpable a torturer as the actual physical torturer.[6] No doubt in the circumstances of that case, where four members of a police force, who had freely chosen their occupation, were isolated in a room with a victim with no other purpose than collectively to apply torture to the victim, guards, witnesses and watchers were all equally guilty of personal and knowing involvement in persecutorial acts. But, as I see it, that is a determination that can be made only in a particular factual context, and cannot establish a general rule that those who look on are always as guilty as those who act. In fact, in my view there is no liability on those who watch unless they can themselves be said to be knowing participants.
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