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Legal Duty to Report Your Coworkers' Off-the-Job Crimes?

That's what a New Jersey appellate court seems to have created, based on the theory that a criminal's coworkers somehow have a special duty to the victim -- even when the crime has nothing at all to do with the job.

Say a coworker is chatting with you at work, and the coworker says something that suggests that he's having sex with a teenager who's just below the age of consent. The relationship has nothing at all to do with your company. It's not on company property. It's not on company time. It's not enabled by the coworker's job. Nor is there a state statute obligating you to report suspected sex crimes you hear about.

What do you do? Maybe you might call the police, to tip them off to the possible crime. Or maybe you're not sure there is a crime (the coworker hasn't outright confessed to the crime). Or maybe you're wary of the police, and don't want to get them involved. Or maybe you're not wild about the state's statutory rape law -- you're not going to violate it yourself, but you don't want to turn someone in for it. Or maybe (rightly or wrongly) you just don't want to be seen as the kind of guy who turns his acquaintances in to the police.

Well, in New Jersey, you'd better call the police -- or else you could get sued by the victim. Indeed, the victim could also sue your employer for your failure, so your employer had better have a policy requiring employees to call the police in such situations, and had better develop a track record of enforcing the policy. That's what a New Jersey decision from a couple of weeks, G.A.-H. v. K.G.G., threatens.

The facts: Georgia had sex with 44-year-old Kenneth when she was 15, under the age of consent (which is 16 in New Jersey). Kenneth has now been convicted for the crime. Kenneth had allegedly said some things to a coworker, Arthur (they were both EMTs), about the relationship, though apparently not that Georgia was 15. Arthur didn't report this to the police (and had no statutory duty to do so). Georgia then sued not just Kenneth, but also Arthur and their employer (GEM Ambulance), even though the crime apparently had nothing to do with their employment.

I think there should be no basis for any tort law duty for Arthur to report this to the police, even if he knew that Kenneth was having an illegal sexual relationship. He didn't do anything to Georgia. He didn't facilitate Kenneth's relationship with Georgia. Indeed, there seems to be no evidence that Keneneth's employment by GEM did anything to facilitate that relationship. The behavior didn't happen on Arthur's or GEM's property. There's nothing that the law has historically recognized as a "special relationship" between Arthur and Kenneth -- they just worked together -- or between Arthur and Georgia (they were strangers).

But here there isn't even an allegation that Arthur knew of the illegal relationship. Instead, the allegation is just that he "should have been aware" of that, from three circumstances:

  1. Kenneth "bragged to Arthur and others about sleeping with a 'much younger' female" (not a crime, of course).
  2. Kenneth "provided differing statements about the girl's age," though none of the statements were that she was under 16.
  3. Kenneth showed Arthur pornographic cellphone images that depict "a young adolescent . . . inherently [of] an age where full development ha[d] not occurred," which might be suggestive of statutory rape (and the images might themselves be child pornography), but might also have been quite hard to interpret -- according to the trial court decision, "there was no evidence that ... [Arthur] saw the explicit images for more than one or two seconds."

Yet based on these facts and allegations, the New Jersey appellate court suggests there may be such a duty:

[W]e examine whether tort liability may be imposed when one remains silent and fails to warn a victim or alert authorities despite knowledge or a reason to suspect that a co-worker has engaged in the sexual abuse of a minor. In our view, the common law does not necessarily preclude the imposition of such a duty. Ultimately, that issue must await further development of the facts surrounding the relationship between the abuser and his co-worker, as well as the facts regarding the co-worker's awareness of the abuse that was unduly limited by the trial judge's failure to permit plaintiff discovery of evidence in the prosecutor's possession.

The court doesn't explain exactly which facts would create such a duty, but suggests they may turn on "what Arthur [the defendant] knew and when he knew it, as well as the extent of his relationship with Kenneth [the abuser]" (i.e., just how well they knew each other). Relationships in which people "have worked together for a sufficiently reasonable amount of time and intensity," the court concluded, "would be adequate to fairly warrant the imposition of a duty to act." How much time? What kind of "intensity," and how does one measure that? The court offers no guidance.

And the court also makes clear that GEM may be responsible based on Arthur's failure to report: "The disposition of Georgia's claim against GEM must also await a fuller understanding of what GEM's employee, Arthur, knew and whether either company policy or the common law duty that might be appropriate to impose on Arthur further implicates GEM." The court doesn't explain the details, but presumably even if Kenneth's sexual abuse of Georgia was far outside the scope of his employment (as it apparently was), perhaps GEM would still be responsible for Arthur's silence, for instance if he learned about the sexual abuse at work.

The opinion offers no guidance at all for employers about the possible boundaries of liability, and provides no limitations. It's not like the famous (or infamous) Tarasoff decision, which obligated a psychotherapist whose patient threatens a third party to warn that third party: That was at least limited to psychotherapists and their employers, while this decision potentially applies to all employers.

It's also not like a typical statutory duty to report suspected sexual abuse, which is likewise limited to some specific employers. And while the opinion talks about how serious a crime sexual abuse is, its logic would apply to any sufficiently serious crime (though of course no-one can know just how serious the crime would have to be to trigger the duty).

Under this precedent, employers would have to have policies requiring their employees to report to the police any crime they learn about from a coworker, even if the crime has nothing at all to do with the employer. And of course they'll have to enforce these policies across the board, so they'll have to discipline every valued employee who they learned has declined to call the police about a friend's misconduct. And naturally, they will only get modest compliance, since many people will be reluctant to be seen as snitches, especially when their coworkers are also close friends -- so the policies won't end up offering that much protection after all. And of course this New Jersey precedent is likely to be cited to and by other state courts in the future.

The defendants have asked the New Jersey Supreme Court to review the case, and I hope that court will indeed agree, and ultimately reverse the decision below. Dangerous stuff, which ought to be nipped in the bud.

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  • RoyMo||

    This has amazing potential, just think of the possibilities here. Traditionally Anglo-Saxon law has frowned on such effective anti crime techniques as reprisals, decimations, and punitive actions, but finally a method has been found to get around all that and institute a Hukou system in America, just extend this from coworkers and employers to neighbors. And if we add family members we can institute a form "mie zu", or family extermination, but humanely, New Jersey style to just your credit rating.

  • Scarecrow Repair & Chippering||

    Imagine the potential for holding Congress Critters responsible, and their employer!

  • RoyMo||

    That sounds dangerous it is very close to holding the government responsible. Next you will argue that the police should have a duty to protect.

  • FlameCCT||

    Sounds like the methods used by Democratic-Socialists in Russia (USSR) followed by the National-Socialists in Germany. Wonder if they picked them up from the Chinese Hukou system.

  • Flight-ER-Doc||

    A good old anglo-saxon concept of law: Misprision of felony....

  • Flight-ER-Doc||

    A good old anglo-saxon concept of law: Misprision of felony....

  • Jerry B.||

    Wonder when New Jersey will carve out an exception for this if your co-worker or employee tells you they are an illegal alien.

  • damikesc||

    Heck, they'd prosecute you for working with ICE, most likely.

  • Longtobefree||

    Say what?

  • Smooth Like a Rhapsody||

    My state (and, I assume we aren't alone) has created categories of people who are legally mandated to report child abuse/ neglect.
    The NJ regime is not far from this.

  • gormadoc||

    My state requires this of medical professionals, therapists, and (I believe) teachers.

  • JesseAz||

    And they do such a good job they report you if your kid fell down from daring to play outside. The danger.

  • damikesc||

    And they are then AMAZED that kids sit inside and play games all day instead of running around outside.

  • Gospace||

    Scout leaders and just about anyone, volunteer or professional, who works with children are mandatory reporters.

  • Eugene Volokh||

    Indeed -- some such statutory duties do exist (and the posts allude to them). But because they are statutory, you can tell who has the duty, and the duty is limited to specific crimes. It doesn't apply to all coworkers who "have worked together for a sufficiently reasonable amount of time and intensity," whatever that means, and it's not retroactively extendable to whatever crimes a court thinks are serious enough, as the tort law duty would be.

  • Rossami||

    Interesting. NJ has a mandatory reporter law that is much more broad than most other states. Specifically, while most statutes do restrict the reporting requirement to only defined categories of people (such as teachers and medical professionals), NJ Rev Stat § 9:6-8.10 (2017) reads
    "Any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse shall report the same immediately".

    § 9:6-8.14. defines a person failing to report as "a disorderly person" which, if I understand correctly, makes it a misdemeanor punishable by up to 6 months and $1000.

    The wording of the NJ law does imply that there might be a duty for Arthur to report regardless of the lack of any "special relationship". That same wording is, however, unworkably broad since it imposes liability on every random passerby regardless of the lack of training or context to evaluate what might count as "reasonable cause".

    And I can find no plausible connection whatsoever to jump from Arthur's theoretical reporting obligation to any kind of liability for the employer.

  • James Smith||

    Logic would seem to dictate that the reporting should arise out of a relationship with the abused rather than a potential abuser. This would be simply because having the relationship with the abused, that individual would be more likely to know that individuals circumstances, particularly their age.

  • DjDiverDan||

    Under the traditional doctrine of respondeat superior, the employer can only be held liable for the torts of its employees if the tort was committed by an action or omission within the scope of the employee's duties as an employee. Presumably, the New Jersey Court could only find the employer liable for the employee's failure to report this highly speculative misconduct if: (a) New Jersey is going to impose a duty on all employees to report any questionable conduct which they learn of while at work; and (b) New Jersey is going to make such duty to report an implicit part of every employee's job duties, making the employer answerable for any failure to report. Which raises the question, is New Jersey going to reimburse employers for the productive time of employees which New Jersey is going to appropriate to fulfill this reporting duty?

  • Rev. Arthur L. Kirkland||

    Which raises the question, is New Jersey going to reimburse employers for the productive time of employees which New Jersey is going to appropriate to fulfill this reporting duty?

    That case should be litigated after the one demanding reimbursement for the productive time of employees appropriated by New Jersey to fulfill the duty to stop for red lights, stop signs, and traffic-directing officers while driving.

    Put FIRE or one of the other right-wing litigation shops on it.

  • Joe_dallas||

    My state (the state board of public accountancy) actually has a prohibition against cpa's from disclosing illegal acts of our clients which are discovered in the course of their services. For example if we become aware of a client that is filing false tax returns, we are prohibited from disclosing such info to 3rd party. There are exceptions such as becoming aware of henious crimes such as murder, but the prohibition does apply to financial crimes).

  • gormadoc||

    "a young adolescent . . . inherently [of] an age where full development ha[d] not occurred,"

    When I was a kid there was a guy charged with possessing child pornography on the same basis. However, the problematic images were actually of a pornstar of legal age. Flimsy, flimsy reasoning.

    If this girl had developed more quickly (apparently one year for a specific female is readily detectable) would they have not imposed this new duty on Arthur and the employer? I doubt it.

  • BillyG||

    I've known some 22 year olds who were mistaken for 8th/9th graders. "Full development" can be subjective.

  • perlchpr||

    And vice versa. In one particularly mortifying incident, I was once mistaken for my mother's husband when I was 12. I had to shave off a pretty well developed beard for my graduation from the 8th grade. And notionally, at least, girls are supposed to mature earlier than boys. I don't find the idea of a 15 year old girl who looks 18 particularly unlikely.

  • ldd||

    First, that appellate decision is stupid. It effectively requires all citizens to turn into private detectives, or risk liability. I can easily see this lead to a "best practice" based on "better safe than sorry" whereby people start reporting all kind of stuff, just in case it turns out to be illegal. "Hmm... she looked 20 in that picture... but I did not see it for long, and pictures are sometimes deceiving. She might be 15... I'll report it just in case." Another brick in the police state edifice.

    Second, this only adds to the list of reasons why you should never cooperate with any investigation. They'll find a way to rope you in, no matter how innocent you are.

  • damikesc||

    This seems absurd. If my job is not COP, then reporting crimes should not be an OBLIGATION.

  • JesseAz||

    Series finale of Seinfeld is now real.

  • Longtobefree||

    Oh, maybe not so bad; this must mean we all now get qualified immunity, right?

  • Earth Skeptic||

    I am not surprised. In the expanding morality of the communitarian statists we all have unlimited obligations to anyone in need or subject to harm. Ultimately, we are at fault for not anticipating all the potential real (or imagined) needs or fears of any victim. And remember that "victims" do not have to feel that they have been injured; the moral police have the authority to decide that for others.

  • ||

    A one-world government police state is just what the Marxists have in store for us. Lock and load.

  • Krayt||

    How wonderfully sarcastic! I agree, the unlimited, detailed, government-mandated perfecting of Mankind's behavior to the Nth degree is long overdue.

  • Longtobefree||

    Lock and load has been replaced by print and hide.

  • BillyG||

    Additionally, the "victims" do not need to feel they were injured at the time. They could decide that they were in fact harmed years later!

  • NToJ||

    This will get turned around.

  • SKofNJ||

    I'm from New Jersey. The New Jersey courts have never seen a tort they don't like. The more torts, the more the courts get to regulate society's behavior. In New Jersey, the courts are filled with elitists who know better than anyone else how society should be run.

    That's also why in my state the courts regulate housing, access to the beaches, including how much towns can charge for beach badges, the education system, all procedural aspects of the court system (meaning whatever the courts deem to be procedural), and techniques for investigating criminal conduct beyond what is required under the federal or state constitutions (by the expedient of declaring such-and-such to be a matter of fundamental fairness).

  • ||

    Stuart Rabner is a leftist piece of garbage responsible for most of that. There are few people whom I would wish death in a fiery crash on, but he's one of them.

  • SKofNJ||

    First, you should be ashamed of your comment wishing his death. Second, it didn't start with him, he's just the latest iteration. It started with Chief Justice Weintraub, decades an decades ago, and was ramped up by Chief Justice Wilentz, and continued by Chief Justice Poritz.

  • ||

    Yes, I know. They are Exhibits 1-4 why reform "Jews" don't belong in any positions of power.

  • SKofNJ||

    You are a despicable person

  • ||

    And not only am I not ashamed, I'd go farther. I hope that one of the illegals and criminals he has coddled over the years rapes his wife or one of his daughters.

  • mad_kalak||

    You forgot your ellipses.

  • ||

    ...

  • mad_kalak||

    Touche! I meant parentheses. Heh.

  • ||

    Haha. And to clarify, I don't actually mean that. As much as I detest Rabner, I don't blame his daughters for the fact that they have a miserable POS for a father.

  • PublicName5||

    In any case, you ruined my evening.

  • ||

    Why is that?

  • ||

    Parentheses where?

  • RoyMo||

    In much of the United States the idea of a "beach badge" is not even in the realm of acceptable debate.

  • CrispyBacon||

    I am reminded of my observations in response to this post: http://prawfsblawg.blogs.com/p.....ients.html

    The blog post concerned liability of doctors accepting unvaccinated patients.

    As I said there: The dynamics at work have infected our society at large. It is the idea that individuals are doing something bad and so responsibility should fall on the shoulders of others in order to force compliance. It is a deliberate fundamental shift from individual responsibility to community responsibility.

    I think this is the best explanation for why ideas like this, long considered absurd, have popped up.

    Crimes, like the one here, are typically not very controversial nor motivated by tribal interests (like vaccination or social exclusion of political adversaries), but the same shift to community responsibility is very definitely at work.

    As I said in the other post, I think we are sliding inexorably in that direction. It is a real shift in how people think, and though we are in the early going it moves fast.

    As another example, there have been a number of articles on the death of comedy and how there is a shift to socially responsible anti-comedy. This is where we are going.

  • Longtobefree||

    See nothing, say something?

  • Eddy||

    For a second I thought the employer in question was a "provider of reproductive health services"...I wonder what New Jersey would do if employees there failed to report the abuse of a minor girl?

  • An Owl Named Dur||

    Abortion clinics regularly fail to report such cases. I doubt the Court has thought this through. When such a case comes up in the future, I trust they'll find a creative exception.

  • tkamenick||

    "whether tort liability may be imposed when one remains silent and fails to warn a victim" - "Hey random teenage girl I don't know, did you know that man over there is having sex with you?"

  • phoqueue||

    Gee, thanks, mister!

  • perlchpr||

    *snerk*

  • Krychek_2||

    I live in Florida, where *any adult* who is aware of a child being abused (physically or sexually) has a duty to report it. As bad an idea as that is, at least in our case it came from the legislature rather than the courts.

  • Naaman Brown||

    A forty-four year-old co-worker bragging about bedding a younger woman of unspecified age is not "reasonable cause to believe" he has bedded a woman. Period. Much less reason to believe that younger means below the age of consent. And his cell phone photos of his babe could be CGI or Shutterstock.

  • David Nieporent||

    While I agree with your first two points (about bragging not being good cause, and about how "younger" does not mean "below the age of consent"), your last point is misplaced. Of course the photos could be fake, but so what? The issue is whether he has reasonable cause to believe, not whether he has proof beyond a reasonable doubt.

  • An Owl Named Dur||

    No. The issue is whether one has a duty to report such suspicions involving a co-worker and a stranger. Whether the suspicions are reasonable only becomes an issue if you assume said duty exists.

  • perlchpr||

    Right. At 44, "25" is a pretty fucking amazing catch if you don't have a million dollars in the bank. There's no need to think the guy means "15".

  • Dan S.||

    How old is Georgia now? How long ago did this sharing between coworkers take place? If she is now over 18 and filed this suit on her own, it was over two years ago. If it was less than that, then someone has filed it on her behalf. Just wondering.

  • An Owl Named Dur||

    "How old is Georgia now?" Asking for a friend?

  • Longtobefree||

    I guess I better get this on the record.
    Although I have not been near New Jersey in half a century, I think it may be possible that the judges in that case have cell phones, or devices that look like cell phones and might be cell phones. I suspect it is possible, though I am not certain that those things that might be cell phones may have pictures, or something that could be a picture on them. It is not certain, but conceivable, that one or more of the things that might be pictures on the things that might be cell phones, may be of something that may be illegal now, or might become illegal in the future; although I have not had a clear look at the things that might be pictures on the things that may be cell phones.
    So will the authorities in New Jersey please look into these possible issues with the things that may be illegal depictions in the things that could be pictures on the things that are possibly cell phones?
    Boy, I feel better now.

  • Jerryskids||

    +3 (felonies a day)

  • ToddR||

    Would clergy have an exception for instances if fellow clergy confess to previously committed crimes?

  • JoeGoins||

    What does this say about mandated reporter laws as a condition of receiving a state license (e.g. public school teachers)? EMS workers are always included in those groups.

  • Eugene Volokh||

    The court notes that the New Jersey mandatory reporting statute did not require reporting in this situation (see pp. 7-8 of the opinion). The rest of the opinion finding the tort duty also does not at all rely on Arthur's status as an EMT -- its logic would equally apply if they were coworkers at McDonald's.

  • JonFrum||

    The problem here starts with the concept of statutory sex crimes. When the state can make consensual behavior non-consensual by definition, bad things are going to come of it. An adult having sex with a pre-pubescent child is a clear category phenomenon. An adult having consensual sex with a sixteen year old adolescent is another matter entirely (and no, I'm not impressed with 'what if it was your daughter' arguments). Sixteen year olds can make poor decisions, as can thirty-six year olds. At sixteen, we may not be fully mature, but we are sufficiently rational to get around. The government does not call the sexual choices of sixteen year olds rape out of concern for the safety or well-being of the teen - it's squeamishness about sex that turns the key. This in spite of the fact that when WE were sixteen, we were doing everything we possibly could to get laid.

  • JoeGoins||

    What about fully rational five year olds (and yes, they do exist)? Should the state criminalize sex between them and a fully rational adult?

  • Deep Lurker||

    Is the state willing to charge fully-rational five year olds as adults, when accusing them of forcible rape or other felonies? If so, then no, the state should not criminalize consensual sex between those five year olds and adults.

    More generally, pick an age. Pick one (1) age at which a minor can both consent to sex and be held responsible for committing forcible rape or other felonies.

  • JonFrum||

    "What about this extreme case" is not a mature, responsible comment. And no, five year olds are not competent to make rational decisions about a behavior they can't begin to understand. The state could deal with sex between late adolescents and adults with something short of a rape-by-definition charge. 'Interference with a minor' if you insist on imagining that a sexually active sixteen year old is a horror. Just don't call it rape when you know it's not rape. Rape is rape.

  • JoeGoins||

    >"What about this extreme case" is not a mature, responsible comment."

    The original poster wrote: "At sixteen, we may not be fully mature, but we are sufficiently rational to get around. The government does not call the sexual choices of sixteen year olds rape out of concern for the safety or well-being of the teen - it's squeamishness about sex that turns the key." Based on his comment, being capable of "sufficiently rational" thought — not age itself — should be the determining factor in criminalizing sexual relations. I posed a question of that introduced "sufficiently rational" thought in the most "squeamish" situation imaginable. If he doesn't think sex with rational five year olds should be allowed, then his point isn't valid while my question is.

    >"And no, five year olds are not competent to make rational decisions about a behavior they can't begin to understand."

    #1. In my hypothetical, they are.

    #2. What are they incapable of understanding? The mechanics of sex, birth control, and STD prevention are easy to grasp. Emotional consequences? I'll give you that. However, I'll also point out that many grown adults "are [not] sufficiently rational" about sex. In the original poster's system, it would be a crime to have sex with those people.

  • AmosArch||

    Unless its an admission like 'I'm going to rape her' I'm a little hesitant to support snitching laws due to the huge potential for abuse and vagueness.

  • Mac.1||

    From a New York Times article on June 28, 20015.

    "WASHINGTON, June 27 - The Supreme Court ruled on Monday that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.

    "The decision, with an opinion by Justice Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader Ginsburg, overturned a ruling by a federal appeals court in Colorado. The appeals court had permitted a lawsuit to proceed against a Colorado town, Castle Rock, for the failure of the police to respond to a woman's pleas for help after her estranged husband violated a protective order by kidnapping their three young daughters, whom he eventually killed."

    A similar ruling had been made in 1989 in DeShaney v. Winnebago county.

  • Seamus||

    So Nietzsche was right about that eternal recurrence stuff. In 20015, not only will there still be a Supreme Court, but it will have Justices named Scalia, Stevens, and Ginsburg.

  • perlchpr||

    But here there isn't even an allegation that Kenneth knew of the illegal relationsip.

    "Arthur" (?), "relationship"

  • Eugene Volokh||

    Whoops, fixed, thanks!

  • An Owl Named Dur||

    So, Arthur and GEM may be held financially liable for breaching a duty that no court in the country had ever previously identified and no human being ever knew existed. Moreover, such duty involves reporting third-party conduct that they don't actually know happened. Nice.

  • Michael Dirmeier||

    It is, indeed, dangerous stuff. However, dangerous "progressive" ideas never get nipped in the bud.

    And why are these ideas "progressive"? Who wouldn't want "progress"? Me, for one. This stuff isn't progressive, but it is dangerous.

  • Sanctimonica||

    I don't know ... ask Urban Meyer.

  • William_Zanzinger||

    For those who haven't read the opinion carefully, I think it's important to emphasize that the court did NOT find liability based on these facts; the court reversed discovery limitations that the trial court had imposed, and vacated the summary judgment order so that the plaintiff could present her case after the discovery is complete.

    From the opinion:

    "

  • William_Zanzinger||

    "Of course, recognizing a policy in favor of action is one
    thing. The process of imposing tort liability when a person fails
    to so act requires a further leap. Unfortunately, before taking
    that jump, we require a better understanding of what Arthur knew
    and when he knew it, as well as the extent of his relationship
    with Kenneth, all of which was precluded by the limitations the
    judge placed on the turnover of evidence from the prosecutor and
    by his premature grant of summary judgment. Consequently, we cannot
    presently say whether a duty to act ought to be imposed on Arthur
    or, for that matter, on GEM."

  • William_Zanzinger||

    "The opinion offers no guidance at all for employers about the possible boundaries of liability, and provides no limitations."

    Actually, several pages (9-13) in the opinion discuss the factors to be considered in making liability determinations. But it makes sense that the opinion did not go into great detail on the contours of liability, because the opinion did not include a finding that liability existed in this case.

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