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Instead of going to HR, can a victim of sexual harassment make a CITIZEN’S ARREST?
By No machine-readable author provided. Klaus with K assumed (based on copyright claims). [GFDL, CC-BY-SA-3.0 or CC BY-SA 2.5], via Wikimedia Commons
Tell ’em Big Bird. (I think that’s from the same episode where Elmo tried to effect a citizen’s arrest on Oscar The Grouch by sitting on top of his trash can until the Sesame Street PD arrived. But, I may be mistaken.)
I teased this citizen’s arrest post on Monday. Yesterday, I got you a supercharged HR thinking cap to address harassment problems at work. But, no citizen’s arrest. I held it back.
Until now.
Disclaimer. Disclaimer. Disclaimer.
Ok, this might be a good time to emphasize The Employer Handbook disclaimer. Specifically, this post is not legal advice. Plus, based on the country or state in which you reside, your mileage may vary. Plus, I am not endorsing citizen’s arrest at work or otherwise. So, please don’t try this at home … or at work.
The genesis of this post is 40 ounces of adult beverage an article I read about a Tasmanian woman who was allegedly sexually assaulted at a concert, but then turned the tables on her assailant when the victim and her friend effected a citizen’s arrest.
This Tasmanian Devil got me thinking about whether a victim of egregious, physical, sexual harassment at work could do something similar here in the United States. So, I Googled — remember the disclaimer — and among other things, I found a “How To” and a website that purports to have citizen’s arrest laws by state. And, this began to sound promising (without endorsement, of course.)
Yes, citizen’s arrest is really a thing.
At least in New Jersey, it is.
I refined my Google search to “citizens arrest NJ,” because I am typing this post from my home in New Jersey, and wouldn’t you know it? There’s a civil jury instruction in New Jersey that addresses a citizen’s arrest.
Making a citizen’s arrest in NJ
Disclaimer. Disclaimer. Disclaimer.
According to the jury instruction (and a New Jersey Supreme Court case from 1899), a private citizen may lawfully arrest another person without a warrant if:
- he/she knows that a crime has actually been committed;
- there is probable or reasonable cause to suspect that the person he/she arrested did it; and
- the people making the citizen’s arrest restrained the suspect only for a reasonable period of time before bringing the suspect before a judge or another appropriate governmental official
Plus, it appears that the offense must either be a felony or a disorderly persons offense has been committed in his/her presence.
But, making a citizen’s arrest of a sexual harasser in NJ?
Ok, let’s assume that Sam Shift Supervisor is getting all sorts of rough and handsy with Wendy Waitress at the Jughandle Diner right in front of her co-worker Walter Waiter. Could Wendy and Walter decide to bypass the HR and go right for a citizen’s arrest of Sam?
Well, let’s break it down.
Disclaimer. Disclaimer. Disclaimer.
- Do Wendy and Walter know that a crime has actually been committed? A simple assault in NJ occurs when someone attempts to cause, or knowingly or recklessly causes, bodily injury to another; negligently causes bodily injury to another with a deadly weapon; or attempts to place someone in fear of imminent injury by menacing them. Rough and handsy sounds close enough to simple assault. Plus, simple assault in NJ is considered a disorderly persons offense. CHECK!
- There is probable or reasonable cause to suspect that the person he/she arrested did it? Wendy is the victim. Walter saw it all go down. CHECK!
- If either Wendy or Walter holds Sam down while the other immediately calls the police, I mean, what more could they do, right? CHECK! (I suppose they could have locked him in the walk-in freezer. That seems dicey to me. Disclaimer. Disclaimer. Disclaimer.)
It sounds like we may have a proper citizen’s arrest.
But, just because you can make citizen’s arrest of a sexual harasser at work, should you?
Bad idea, unless you have no alternative.
There’s a good chance that trying to make a citizen’s arrest will escalate the matter and place the “citizen,” the harasser, or other bystanders at risk of physical harm. Plus, if the citizen goes too far, then that person could be on the hook for “false imprisonment,” or other torts, or crimes I suppose. Additionally, if companies wanted employees taking the law into their own hands, I trust that would be part of the new employee orientation or employee handbook. I have yet to see or draft one with a “Citizen’s Arrest” section. Better to follow the policy and use proper complaint channels.