The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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:
- Kenneth "bragged to Arthur and others about sleeping with a 'much younger' female" (not a crime, of course).
- Kenneth "provided differing statements about the girl's age," though none of the statements were that she was under 16.
- 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.