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Tough-minded, old-school law professors teaching torts loved the hypothetical of the baby and the well: "if I am sitting on my front porch and I see my neighbor's infant crawling towards an open well on my neighbor's property, do I have any legal duty to do anything about it?" At common law, of course, the answer was a resounding "no." Nowadays, with respect to the physical or sexual abuse of minors, the answer is not so clear. Statutes and regulations require various professions that deal with children to report suspected cases of abuse. The common law is moving in the same direction, creating a legal duty to act affirmatively to protect a child in particular circumstances when the individual knows of actual child abuse. A series of cases has, over the years, incrementally imposed a duty to report instances of child abuse on an individual with a "special relationship" with either a child or another person in a position to harm a child. Consistent with these principles, in J.S. v. R.T.H., the New Jersey Supreme Court held that the modern common law imposes that duty on a wife when she knows her husband is abusing a neighbor's children.

Recently, in G.A-H v. K.G.G., the New Jersey Supreme Court avoided deciding whether the same duty exists when a co-worker has reason to know that a fellow worker is committing sexual abuse unrelated to their job. Although we agree with the result reached in G.A-H v. K.G.G., we think the time is coming where our Supreme Court will have to bite the bullet and decide whether there should be a more general duty to report child sexual abuse, imposed on anyone who has reasonably certain knowledge that such abuse is occurring or clearly forseeable. The question is a difficult one but, in our view, there may be good reasons to impose a more general duty, in contradistinction to the long standing common law "no-rescue" rule.

In K.G.G., defendant "Kenneth," age 44, was both an emergency medical technician and a youth soccer coach. In his capacity as a coach, he entered a sexual relationship with a 15-year-old girl that lasted until the victim informed her parents, the police were called, and he ultimately pled guilty. At his job as an EMT, he had boasted to his co-worker, defendant "Arthur," that he was in a sexual relationship, but did not disclose his partner's name or age. In the course of his bragging, Kenneth showed Arthur naked pictures of a young woman of indeterminate age on his cell phone.

Plaintiff sued not only Kenneth but also Arthur and the ambulance company that employed them, on the theories that Arthur and the employer had a duty to report the abusive relationship, that the employer was liable in respondeat superior for Arthur's failure to report, and that the employer was liable for negligently hiring, training and supervising both men. The trial court granted summary judgment of dismissal, on the ground that no evidence gave Arthur reason to know that Kenneth was in a sexual relationship with a girl below legal age. The Appellate Division reversed and remanded for consideration whether the duty declared in J.S. v. R.T.H. applied more broadly.

The Supreme Court in turn reversed the Appellate Division and reinstated the trial court dismissal. It held that this case did not present the question that concerned the Appellate Division because, unlike the wife in J.S., Arthur had no reason to know that his co-worker's sexual relationship involved a child. Without knowledge or reason to suspect an abusive relationship, it held, the individual duty to report could not arise. Because Arthur could not be liable individually, the employer could not be derivatively liable in respondeat superior. Because the abuse had no connection to either man's work, the employer also could not be liable for negligent hiring, training or supervision.

We agree that the Supreme Court was prudent not to address the scope of the duty to report without facts that might arguably give rise to it, as the issue is certainly a knotty one. Plaintiff's claim in K.G.G. was that Arthur had a duty to report a case of child abuse admitted to him by a co-worker even though the abusive relationship had no connection to the job. Human nature and modern photography being what they are, that issue will arise again. The Supreme Court reached the right result in K.G.G., but only because the co-worker had no knowledge that "Kenneth" was in an illegal sexual relationship with a minor. Had the co-worker had such knowledge, there may very well have been a duty to report the relationship.

We agree that the tried-and-true "no-duty-to-rescue" common-law rule should remain in place for any case involving an adult in danger, either from criminal behavior or any of the myriad other predicaments that plague us in life. The rule is firmly grounded in time-honored notions of individual freedom, autonomy, and our desire not to be spied on by our neighbors. We think, however, that the rule should be different for child victims of sexual abuse, where the actor clearly knows of the abuse or where the potential for abuse is clearly and reasonably foreseeable. Children need the special protection of the law, especially in situations where the potential harm to them is sought to be accomplished in secret. Although researchers have recently observed a decline in reported instances of child sexual abuse, it remains widespread in our society. Perhaps it was always a large but hidden problem, but the advent of the internet and a lessening of inhibitions about such things have made it more visible. Researchers have reported that at least one in five adult women in North America and between 5% and 10% of adult males in North America have experienced sexual abuse during childhood. Further, the National Incidence Study of Child Abuse and Neglect, an on-going congressionally funded study designed to document the incidence of child abuse in American society, now in its fourth iteration, reports that, for 2005-2006 (the last years for which data has been compiled), there were 135,500 cases of child sexual abuse in the United States where harm was very likely caused and 180,500 cases where there was great potential for harm or endangerment. Children cannot be expected to act to protect themselves in such situations. Pedophiles and other similar predators take advantage of the "no-rescue" norm and the fact that strangers do not want to pry, even though they have an articulable suspicion that something unspeakable is going on between an adult and a child.

K.G.G. was not the right case, but we are fairly certain that our Supreme Court will soon have a "Palsgraf moment" in its jurisprudence on such matters, where it will have to decide whether to impose a duty to report in cases involving reasonably certain knowledge of child sexual abuse by someone not in a special relationship with the child and not in a special relationship with the perpetrator. Our Supreme Court is certainly up to this task, as cases like J.S. v. R.T.H. show. We believe, however, that such a legal duty should be carefully circumscribed and, if the court is inclined to impose a more general duty, it should proceed very cautiously and with certain other parameters in mind. For example, the criminal law in New Jersey does not penalize sexual contact between partners where the victim is 13 years or older and the perpetrator is no more than 4 years older than the victim. If a 16 year old has the capacity to consent to sex with a 20 year old, why not with a 21 or 22 year old? We don't think a general duty to report should be imposed in such cases. On the other hand, if the child is under 13 or if the alleged perpetrator is clearly much older than the child, it would seem to be good social policy to require anyone with reasonably certain knowledge of the sexual abuse, regardless of relationship, to report the matter to the proper authorities. The biblical adage and common law rule suggesting we are not each other's keeper should not be applied when it comes to protecting children from sexual abuse by predatory adults.